Volume 82 — Mississippi Reports

From the chancery court of Copiah county. Hon. Henry O. Conn,'Chancellor. The suit was a contest of the will of Mrs. Fvaline King, deceased widow of the late Col. Benjamin King, of Copiah county. Rowan and others, appellees, grandchildren of the testator, were the contestants, and Benjamin King and Mrs. Eva King Bloom, appellants, a son and a daughter, respectively, of the testatrix, were the proponents of the will.

From tbe circuit court of Marshall county. Hon. Perrin H. Lowrey, Judge. The appellant, Owens, was indicted by the grand jury of Lafayette county, for the murder of one John A. Montgomery, was tried and convicted and sentenced to death. He appealed therefrom to the supreme court and the conviction was reversed. See Owens v. State, 80 Miss-., 499. The former report of the case gives a statement of the facts.

Prom the circuit court of Lafayette county. Hon. Perrin H. Lowrey, Judge. Owens, appellant, was indicted and convicted of murder, and appealed to the supreme court. The facts are stated in the opinion of the court. Por a history of appellant’s several trials, see Owens v. State, ante, 19; Owens v. State, 80 Miss., 499; Matthis v. State, 80 Miss., 491, and the footnote to last case, at page 493. Under the facts, appellant was clearly entitled to a change of venue.

Erom the circuit court of Oopiah county. Hon. Kobert Powell, Judge.' Greaves, district attorney, appellee, was plaintiff in the court below; Ellis, appellant, was defendant there. The suit was a quo warranto proceeding to remove Ellis from the office of trustee of the Hazlehurst public school. Erom a judgment in plaintiff’s favor defendant appealed to the supreme court.

From the circuit court of Lowndes county. IIon. Eugene O. Sykes, Judge. Cheaves, appellant, was plaintiff in the court below, the railway company was defendant there. Held: under the same Montana statute, that a fireman could recover for the negligence of an engineer, they not being fellow servants under said statute. A similar rule as to the same statute was made in 63 Fed., 114. In Rutherford v. So. Ry.

From the chancery court of Quitman county. IIon. A. Mo. Ktmbrougi-i, Chancellor. Weiner, appellant, was complainant in the court below; Dickerson and others, appellees, were defendants there. Held: regardless of any defect which then existed in its existing title to the same.

From the chancery court of Harrison county. Hon. Stone Deavoubs., Chancellor. Rossel and another, appellees, were complainants in the court below, Levy, appellant, and others were defendants there. When the case reached the supreme court on Levy’s appeal, appellees moved the court to dismiss the same. The facts relating to the motion are fully stated in the opinion of the court •ovei ruling the motion. The appeal in this case is not warranted by code 1892, section 34.

From the chancery court of Lincoln county. How. Henry C. Conn, Chancellor. Mrs. Maxwell, appellee, was complainant in the court below; Bennett, appellant, was defendant there. From a decree in complainant’s favor defendant appealed to the supreme court. The bill was to cancel defendant’s tax title as a cloud upon title to land. The land was sold on the first Monday in March, 1893, for the taxes of 1892, by the tax collector.

From the circuit court of Neshoba county. Hon. Guión Q. Hall, Judge. Gamblin, appellant, was indicted and tried for murder, was convicted of manslaughter, and appealed to the supreme court; The facts upon which the case turned in the supreme court are sufficiently stated in the opinion of the court. This writing should not have been admitted in evidence.

Erom the circuit court of Pike county. Hon. James B. Sternberger, Special Judge'.

Prom the circuit court of, first district, Hinds county. Hon. Robert Powell, Judge. Denham and another, appellees, were paintiffs in the court below; the railroad company, appellant, was defendant there. Prom a judgment in favor of plaintiffs the defendant appealed to the supreme court, assigning as error the over-ruling of a demurrer to plaintiff’s declaration.

From the circuit court of Copiah county. IIon. Robert Powell, Judge. Orgill Bros. & Co., a corporation, appellee, was plaintiff in the court below; the Bank of Forest, and one Huber, were defendants there. From a judgment in plaintiff’s favor both defendants appealed to the supreme court. Huber and others were organizing a corporation, the Bank of Forest.

From the circuit court of, first district, Chickasaw county. JIon. Eugene O. Sykes, Judge. Appellant, Baker, was indicted for committing a rape upon one Adeline Baker, his stepdaughter, was convicted and appealed to the supreme court.

Prom the chancery court of Yazoo county. Hon. Robert Powell, Judge. Watson, appellee, was plaintiff, and the railroad company, appellant, was defendant in the court below. Prom a judgment in plaintiff’s favor, defendant appealed to the supreme court. The opinion states the facts.

From the chancery court of Leflore county. LIon. A. Me. Kimbrough, Chancellor. O’Brien Bros. and. others, appellants, were complainants, and Wilson, administrator, and others, were defendants, in the court below. From a decree dismissing the bill complainants appealed to the supreme court. The facts are fully stated in the opinion of the court. There was a breach of the conditions of the bond when the administrator failed to file a legal inventory of the estate.

Erom the circuit court of, second district, Panola county. Hon. Perrin H. Lowrey, Judge. Mrs. Watson, appellee, was plaintiff, and the telegraph company, appellant, defendant, in the court below. John Watson, the husband of appellee, in his lifetime, lived with his family, seven or eight miles from Patesville, in Panola county, Mississippi. He suffered from a cancer, and in November, 1900, went to Birmingham, Ala., to be medically treated.

From the circuit court of Jackson county. ■ Hon. William T. McDonald, Judge. White and another, appellants, were plaintiffs and Leather-berry and another, appellees, were defendants in the court below. • . ' The defendants’ demurrer to plaintiffs’ declaration was sustained in the court below; plaintiffs did not amend, a judgment bnal was rendered in defendant’s favor and plaintiffs appealed to the supreme court. The opinion of the court states the facts.

From the chancery court of Claiborne county. Hon. William P. S. Ventres s, Chancellor. The railroad company, appellee, was complainant in the court below; Archer, appellant, was defendant there. In 1847 Richard T. Archer conveyed his lands in Claiborne county to S. and J. Cobum, in trust for the úse and benefit of his wife, Ann B. Archer, for her natural life, and at her death to such- child or children of said Ann B. Archer as should be living at the time of her death.

From tbe chancery court of Hárrison county. Non. Stone Deavours, Chancellor.

From the circuit court of Warren county. IIon. George Anderson, Judge. White, appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. From a judgment for plaintiff, defendant appealed to the supreme court. The facts are stated in the opinion of the court. The court erred in refusing the instruction ashed for by the defendant.

From tbe circuit court of Noxubee county. Hon. Guión Q. Hall, Judge. Ward, appellant, was plaintiff in the court below; the insurance company, appellee, wás defendant there. The suit was upon a fire insurance policy, given upon a stock of merchandise, and it contained a provision to the effect that a suit could not be maintained upon it, or recovery be had, unless the suit should be brought within twelve months from the time the cause of action accrued.

Erom tbe circuit court of, second district, Coahoma county. Hon. James H. Neville, Judge. Bradford, appellee, was plaintiff in tbe court below; tbe express company, appellant, was defendant there. Erom a judgment in plaintiff’s favor tbe defendant appealed to tbe supreme court. Tbe suit was for tbe value of a dog, alleged to bave been hilled by defendant.

Erom the circuit court of Smith county. Hon. John E. Enochs, Judge. Leland, appellant, was indicted, tried and convicted in the court below for the larceny of a horse, and appealed to the supreme court. The evidence for the state was, in substance, that the horse was stolen or taken from the stable of Tullos, the owner, on the night of January 29, 1902.

From the circuit court of Madison county. Hon. Kobert Powell, Judge. Adams, state revenue agent,' appellant, was plaintiff in the court below; Dendy, appellee, was defendant there. From a judgment sustaining a demurrer to the declaration and dismissing the suit plaintiff appealed to the supreme court. The opinion states the facts. First. Was section 8 of chapter 250 of the laws of 1890 repealed by the enactment of the code of 1892, or was it not ? Second.

Erom the circuit court of Webster county. Hon. William E. Stevens, Judge. Woffard and others, appellees, petitioned the board of supervisors to add territory, less than a township, to a pre-existing stock law district; Shaw and others, appellants, opposed.

From the chancery court of Yazoo county. Hon. Henry O. Conn, Chancellor. Lightcap, the appellee, was complainant in the court below, and Yazoo City, appellant, was defendant there. The object of the suit was to enjoin the issuance of municipal bonds. From a decree in complainant’s favor the defendant appealed to the supreme court.

Erom the chancery court of Jackson’ county. Hon. Stone Deavours, Chancellor. Held: it must be of that character which would arrest attention. See also Stevens v. Magee, 81 Miss., 644.

<p>1. Criminal Law. Jurors. Competency. Code 1892, ?, 2355.</p> <p>Under code 1892, § 2355, providing that any person otherwise competent who will make oath that he is impartial shall he competent as a juror in any criminal case, although he has an im- . pression or opinion as to the guilt of the accused, if it appear to the court that he has no bias and no desire to reach any result except that to which' the evidence may conduct, the oath of the proffered juror is not conclusive, nor is he the judge of his own competency.</p> <p>2. Same.</p> <p>A person is not qualified as a juror:</p> <p>(а) Wh'o has an opinion about the, case and cannot say positively that he can try the case as though he had none; or</p> <p>(б) Who has an opinion about the case and from what’ he knows could bring in a verdict (other than one predicated of a want of further knowledge) without further evidence; or</p> <p>(e) Who has an opinion about the case which it would require strong testimony to remove.</p>

<p>1. Constitutional Law. Constitution 1890, seo. 158. Chancellors. Interchange. Code 1892, § 458.</p> <p>Code of 1892, § 458, authorizing chancellors to alternate and make temporary exchange's of their districts, is constitutional, although by constitution of 1890, sec. 158, the legislature is expressly authorized to provide by law for the interchange of circuit judges and there is no like constitutional provision respecting chancellors.</p> <p>2. Chancery Courts. Adjourned terms. Code 1892, 1913.</p> <p>Where the chancellor, as authorized by code 1892, § 913, directed the clerk to adjourn the regular term of the court to -a designated day, and he did so, a decree, in a suit pending on the- first day of the regular term, rendered on the day to which the term was ajourned was not rendered at a special term of the court, but at an adjourned term.</p>

From tbe circuit court of DeSoto county. JIon. Perrin H. Lowrey, Judge. Filmer, appellee, was plaintiff in tbe court below; Mc-Dugle, appellant, was defendant there. Tbe suit was an action begun in tbe circuit court upon a judgment of a justice of tbe peace of Sbelby county, Tenn. A demurrer to tbe declaration was overruled, tbe defendant declined to plead further and judgment was entered for tbe plaintiff, from which tbe defendant appealed to tbe supreme court.

Erom the circuit court of Lee county. Hon. Eugene O. Syices, Judge. Adams, state revenue agent> appellee, was plaintiff in the court below; Mrs. Thurman, appellant, was defendant there. Erom a judgment in plaintiff’s favor defendant appealed to the supreme court. The facts are fully stated in the opinion. Section 1590 of the code of 1892 is highly penal. Penal statutes must be strictly construed.

Erom the circuit court of Marshall county. Hon. Perrin H. Lowrey, Judge. Hawkins, appellee, was plaintiff, and the railroad company, appellant, was defendant in the court below. Erom a judgment in plaintiff’s favor for $450 defendant appealed to the supreme court. The evidence was, in substance, as follows: Plaintiff was employed by the sheriff of Marshall county, Miss., from whom some prisoners had escaped, to trail them up with his dog.

From the circuit .court of Madison county. Hon. Eobert Powell, Judge. Held: and that they afterwards attended the trial one day, and duly proved their attendance, but that the clerk, appellee Durfrey, refused to issue a certificate of such attendance, including their mileage.

From the circuit court of Liucolu couuty. Hon. Robert Powell, Judge. Hodges, appellee, was plaintiff, and Bigner, appellant, was defendant in the court below. From a judgment in plaintiff’s favor defendant appealed to the supreme court. The suit was for slander.

From the circuit court of Lauderdale county. Hon. Guión Q. Hall, Judge. Mrs. Lott, appellant, was plaintiff in the court below; Payne and others, appellees, were defendants there. The action was an ejectment, and from a judgment in defendant’s favor the plaintiff appealed to the supreme court. The suit was brought to recover a strip of land lying between lots owned by appellant and appellees in Meridian.

From the circuit court of Monroe county. Hon. Eugene O. Sykes, Judge. Wiygul and another, appellees, were plaintiffs and the railroad company, appellant, was defendant in the court below. From a judgment in plaintiff’s favor the defendant appealed to the supreme court. The Tombigbee river is a navigable stream, running through Mississippi and Alabama.

From the chancery court of Yazoo county. Hon. Henry C. Conn, Chancellor. Barrier, appellant, was complainant and Kelly and others, appellees, were defendants in the court below.

From the circuit court of Adams county. ITon. Jeee Truly, Judge. Dabney, appellant, was indicted, tried and convicted of rape, and appealed to the supreme court. On the trial a witness was permitted to testify, over defendant’s objection, that he, the witness, lived in an adjoining room to the prosecutrix and that his trunk was broken open and a suit of clothes stolen therefrom by defendant about the time the woman claimed to have been raped.

Prom the chancery court of Warren county. Hon. William P. S. Vbntress, Chancellor. Mrs. Romano, appellee, was” complainant, and Mrs. Thomas, appellant, was defendant in the court below. Prom a decree in complainant’s favor defendant appealed to the supreme court. The facts are fully stated in the opinion of the court.

One case, from the circuit court of, second district, Coahoma county. Hon. Samuel O. Cook, Judge. Held: both by the Supreme Court of Oregon and by the Circuit Court of the United States for the District of Oregon, that that State has the power to tax mortgages 'of land there, though owned and held by citizens and residents of other States.’ The conclusion reached by the Supreme Court, of the United States in the case just cited is that…

Prom the chancery court of Covington county. Hon. Stone Deavours, Chancellor. Holloman and another, appellants, were complainants in the court below; Bullock, appellee, was defendant there. Prom a decree in defendant’s favor complainants appealed to the supreme court. The facts are stated in the opinion-of the court. A woman by the name of Amanda Pittman lived in Covington county and was the mother of three bastard children, each begotten by a different man.

From the circuit court of, first district, Carroll county. Hon. William F. Stevens, Judge. Heggie, appellee, was plaintiff, and Stone, appellant, and another were defendants in the court below. From a judgment in favor of plaintiff against the appellant defendant appealed to the supreme court. The suit was dismissed as to the other defendant.

<p>Erom tbe circuit court of DeSoto county.</p> <p>Hon. Perrin H. Lowrey, Judge.</p> <p>Tbe Board of Levee Commissioners for tbe Yazoo and Mississippi Delta, appellant, began proceedings, tinder laws 1897, chapter 19, pp. 22-29, against Nelms and others, appellees, to subject certain lands to levee purposes. The appraisers awarded appellees damages which were unsatisfactory to them and ■ they appealed therefrom to the circuit court, where upon trial a judgment was rendered in appellee’s favor and the board of commissioners appealed to the supreme court. An appraisement was made of the land sought to be condemned, allowing the appellees $55.50 per acre for part of the land that was on the outside of the levee and which would be protected by the levee, and $35.50 per acre for the part on the inside of the levee, that is, between the levee and the river. The appraisers also allowed the lessee of the land $4.50 per acre on both sides the levee. From this award the owners of the land appealed to the circuit court, but the lessee did not appeal. On the trial in the circuit court, the land owners were permitted, over the objection of the board, to prove, the value of the land by testimony showing what it would rent for annually per acre, and what other land of like character in the same neighborhood would rent for per acre, and what said land would produce per acre in cotton, corn, etc., and, on that basis, what the witness’ opinion was as to the value of the land; and this without first showing that the witness had any expert training. Appellant-offered to introduce the records of deeds showing sales of like land in the same community, the dates of the sales, the parties thereto, and the prices as recited in the deeds paid for same. The land owners objected to this, and the objection was sustained. The court instructed the jury, for the land owners, that they must find a verdict for the cash value of their interest in the land, and itemize their verdict; that the parties who testified as witnesses in the case, but who were the appraisers in the case, were not entitled to any greater consideration, or their testimony entitled to any greater weight, than any othey equally creditable witnesses; that by condemning the land the levee board acquired an absolute title to the land; and that plaintiffs could not prevent such taking, and can only insist upon being paid the full and fair value for the land, and damages consequent upon such taking. The court refused to instruct for the levee board that the value of one year’s lease must be deducted. from the value of the land as shown by the evidence in the case. From a verdict and judgment for the land owners for $70 per acre for land outside the levee, and $60 per acre for that inside the levee, the levee board appealed to the supreme court.</p> <p>The court below erred in allowing appellee’s witnesses, over the objection of appellant, to testify as to the probable yield of the land in controversy, and as to its productiveness and what said lands would rent for annually, 10 Am. & Eng. Enc. Law (2d ed.), 1162.</p> <p>The court below erred in allowing appellee’s witnesses to testify as to the value of the land in question, giving mere opinions of value, and blandly asserting the value, when said witnesses had not properly qualified, and did not base their testimony on any actual cash sales made for similar lands in the same vicinity.</p> <p>What lands will rent for annually has nothing to do with its rtrue cash value, and this is apparent on the lightest thought given the proposition.</p> <p>The court below erred in granting the instructions asked by the appellees; first, because it wholly failed to instruct the jury that the owners were entitled to recover from appellant the value of the reversion, and rents reserved less abatement for present payment; that the said reversion is the fee less the term of said leasehold of one year. Levee Commissioners v. Johnson, 66 Miss., 248.</p> <p>Appellant objected to proof of the fact of what the land taken had annually produced up to the time of the taking, and not what it was thought it would produce in the future. The court below properly overruled the objection to the above testimony. Levee Commissioners v. Dillard, 76 Miss., 641, 6 Am. & Eng. Enc. Law (1st ed.), 620, and notes.</p> <p>The court below erred, says appellant, in admitting testimony of the rental value of the land taken, and other land on the same place and in the same neighborhood. The testimony was perfectly competent as one of the elements of the value of the land and as descriptive of the same, and as a fact or basis to aid in determining its value. This was expressly decided by this court in Levee Commissioners v.. Dillard, supra.</p> <p>This court expressly decided in Levee Commissioners v. Dillard, supra, that the opinion of witnesses as to the value of lands was perfectly competent where the witness was acquainted with the land and knew its value.</p> <p>Deeds could only be offered as evidence on what was the value of the land in controversy. The record showed that a number of these deeds related to sales some seven or eight years previous, or in 1895 and 1896. Others were as late as 1900 and 1901. No evidence was offered with the deeds that the property conveyed therein was similarly situated, located, or of like character and value to the property in controversy, or that it was adjacent property or that the recited consideration in said deeds were the true considerations for the sales, or that said sales were made in the usual course of bargain and sale of lands for their full and fair value. Bose v. Taunton, 119 Mass., 99; Esch. v. B. B. Co., 39 N. W. Rep., 129; O’Hara v. Chicago, etc., B. Co., 28 N. E. Rep., 923.</p>

From the circuit court of Warren county. Hon. George Anderson, Judge. Wright, appellant, was indicted, tried and convicted of wrecking a railroad train, Oode 1892, sec. 1266, and appealed to the supreme court. On the trial it was shown that defendant had made a confession, which had been taken down by a stenographer, and written out and signed by defendant.

From the chancery court of, first district, Hinds county. Hon. Henry O. Conn, Chancellor. Grant and wife, appellees and cross-appellants, were complainants in the court below; the building and loan association, appellant and cross-appellee, was defendant there. Grant and his wife, in March, 1896, took ten shares of stock in the Georgia State Building & Loan Association.

From the chancery court of, first district, Panola county. Iíon. James O. Longstreet, Chancellor. Dickerson, appellant, was complainant in the court below; Mrs. Askew, appellee, was defendant there. The suit was to enforce a vendor’s equitable lien on lands.

Erom tbe circuit court of Tippab county. Hon. Perrin H. Lowrey, Judge. Mortimer, appellee, was indicted for obtaining a teacher’s pay certificate by misrepresentations. A demurrer to tbe indictment was sustained, and tbe state appealed to tbe supreme court.

From the chancery court of, second district, Marion county. Hon. Stone Devours, Judge. Bounds and wife, appellees, were complainants and Collins and another, appellants,' were defendants in the court below. From an interlocutory decree, overruling a motion to dissolve injunction, defendants appealed to the supreme court. The opinion states the facts of the case. At the time the deed was executed to Collins, Bounds and his wife were not residing on the property.

From the circuit court of Tippah county. Hon. Perrin H. Lowrey, Judge.' The railroad company, appellee, was plaintiff in the court below; Johnson and others, doing business under the copartnership name of Johnson, Nesbitt & Co., were defendants there. From a judgment in plaintiff’s favor defendants appealed to the supreme court Appellants were cotton buyers,in Birmingham, Ala., and in the fall of 1897 had an agent at Pontotoc, Miss., buying cotton.

Erom the circuit court of Lauderdale county. Hon. Guión Q. Hadd, Judge. Adele Rosenbaum, guardian, appellant, was plaintiff in tbe court below; Moses Rosenbaum and another, appellees, were defendants there. From a judgment in defendants’ favor plaintiff appealed to the supreme court. Louis, Moses, and A. D. Rosenbaum were doing business in Meridian, Miss., as partners under the firm name of D. Rosenbaum’s Sons.

From tbe circuit court of Tishomingo county. Hon. Eugene O. Sykes, Judge. Mackmasters, appellant, was indicted for tbe murder of bis own father, Uriah Mackmasters. On bis first trial be was convicted of manslaughter and appealed to tbe supreme court, where tbe conviction was reversed and tbe cause remanded for a new trial. See Maclcmasiers v. State, 81 Miss., 374.

Prom the circuit court of Lauderdale county. Hon. Guión Q. Hall, Judge. Clarke, appellant, was plaintiff, and Pierce, appellee, defendant in the court below. After the case had been submitted and the jury had retired to consider of their verdict, they requested the court to further instruct them.

<p>Prom the circuit court of Grenada county.</p> <p>Hon. William P. Stevens, Judge.</p> <p>Hammel, appellant, was plaintiff, and Mrs. Atkinson, appellee, defendant in the court below. The action was unlawful entry and detainer. From a judgment in defendant’s favor the plaintiff appealed to the supreme court. The facts are stated in the opinion.</p> <p>We call the court’s attention especially to the fact that while T-T mum el had rented the land in connection with other lands to Clarty, yet the land in controversy was not in the actual occupancy of Clarty. The land was not cleared; none of it was in cultivation, but on the other hand wild and unoccupied; in other words, there was no actual disseizing — there was no actual ouster by appellee of Clarty from the land. Those authorities which hold that the landlord cannot maintain in his own name the action of forcible entry and unlawful detainer are all based upon the fact that the tenant, and tenant alone, was the party whose occupancy was forcibly invaded; in other words, the authorities only go to the extent of holding that the tenant is the proper party to bring the action when he has been dispiosessed of his ocupancy. No authority can be found which holds that the landlord cannot maintain the action where the lands are merely in the possession, as contradistinguished from the occupation, of the tenant. There is a vast difference between possession and occupation. The landlord, the true owner of the land, in contemplation of law, is always in possession of his land, even though the land be leased' and is in the occupancy of his tenant, and the tenant is also in the possession of lands which he has leased from the true owner, but he may not be in actual occupation of the same. 13 Am. & Eng. Enc. Law (2d ed.), 751, says: “One who is in possession by agent or servant has such actual possession as will enable him to maintain the action,” referring to quite a number of authorities. On page 752 of the same volume (and authorities referred to are the only ones which deny the right of the landlord to bring the action), it is said: “When the premises in question are occupied by a tenant, sucb tenant must bring this action if the premises are forcibly entered upon or detained by third persons.”</p> <p>We call the attention of the court to the proposition that the premises must be occupied by the tenant. The property in controversy in this suit was not occupied by the tenant; he had no actual occupation; he was simply in constructive possession by virtue of the contract which he made with the landlord by which he was to work other lands.</p> <p>The action of unlawful detainer is purely a statutory remedy; we look to the statute and to the statute alone. Section 4461 of the code gives the right of action to “anyone deprived of the possession of land by force, intimidation, fraud, strategem, stealth, etc.” Now it may be true that the tenant, Clarty, whose possession was invaded, may have had the right to bring this suit, yet it does not follow that Hammel, the appellant, does not also have the right. It is submitted that under this statute, either the landlord or the tenant has the right to maintain the action; whenever the possession of the tenant is invaded it ipso facto invaded the possession of the landlord; the possession of the tenant is the possession of the landlord; and to oust the tenant is to oust the landlord.</p> <p>The invading of the possession by Mrs. Atkinson clearly conferred the right to bring the action as it was held by this court in Parker v. Eason, 68 Miss., 290.</p> <p>[The brief of counsel for appellee was lost, mislaid or withdrawn from the record before it reached the reporter.]</p>

From the circuit court of Warren county. Hon. George Anderson, Judge. Mrs. White and others, appellees, were plaintiffs in the court below; the Vicksburg, etc., Company, appellant, was defendant there. From a judgment in plaintiff’s favor defendant appealed to the supreme court. The facts upon which the decision is based are stated in the opinion of the court.

Erom the circuit court of Tishomingo county. Hon. Eugene O. Sykes, Judge. Short, appellant, was indicted, tried and convicted of burglary, and appealed to the supreme court.

Erom the circuit court of Warren county. Hon. George Anderson, Judge. Schmidt, appellee, was plaintiff in the court below; Trow-bridge, mayor and treasurer of the city of Vicksburg, appellant, was defendant there. The suit was for a mandamus. Erom a judgment in plaintiff’s favor the defendant appealed to the supreme court. The facts are sufficiently stated in the opinion of the court.

From the circuit court of Neshoba county. Hon. Guión Q. Hail, Judge. Rogers, appellant, was indicted, tried and convicted of the murder of Thomas A. Byrd, and sentenced to the penitentiary for life, from which conviction and sentence he appealed to the supreme court; The facts are sufficiently stated in the opinion of the court. There is no element of malice in any of the facts alleged in the instruction.

Ebom the circuit court of, second district, Panola county. Hon. Perrin H. Lowrey, Judge. Jones, appellee, was plaintiff and Mrs. Johnson, appellant, was defendant in the court below. From a judgment in plaintiff’s favor the defendant appealed to the supreme court. The facts are sufficiently stated in the opinion. The peremptory instruction asked by appellant should have been sustained.

Prom the circuit court of, second district, Talobusba county. Hon. Samuel O. Cook, Judge. Mrs. Pearce, appellee, was plaintiff and the Telegraph Company, appellant, defendant in the court below. This suit was to recover $1,950 actual damages and the statutory penalty of $25 from the Western Union Telegraph Company for failure to promptly deliver a telegraph message sent by plaintiff from Water Yalley, Miss., to her husband, at McComb City, Miss.

From the chancery court of Issaquena county. Hon. A. McC. Kimbrough, Chancellor. Ingersoll, appellee, was complainant, and Diggs, appellant, was defendant, in the court below. From a decree in complainant’s favor defendant appealed to the supreme court. The opinion states all the facts necessary to its understanding. [The briefs of counsel were not with record when it reached the reporter’s hands.]

From the chancery court of Lincoln county. Hon. Henry C. Conn, Chancellor. The Butterfield Lumber Company, appellant, was complainant, and Hartman, appellee, was defendant in the court below. In November, 1892, Esau Harness received a- patent from the United States government to a certain tract of land in Lincoln county as his homestead.

From the circuit court of, second district, Oarroll county. Hon..William F. Stevens, Judge. Stanley, appellant, was indicted, tried, and convicted .under Code 1892, sec. 1255, of having mingled poison with water, with intent thereby to murder one Heggie.

From: tbe circuit court of Tishomingo county. Hon. Eugene O. Sykes, Judge. Jenkins, appellant, was indicted, tried, and convicted, under Code 1892, § 1594, of procuring intoxicants for one Brown, a person in the habit of becoming intoxicated, and appealed to the supreme court.

From the circuit court of Hancock county. Hon. James H. Neville, Judge. McDonald, appellee, was plaintiff in the court below; Slay-don and another, appellants, were defendants there. From a judgment in plaintiff’s favor defendant appealed to the supreme court. The facts are sufficiently stated in the opinion of the court. Of course, to try a case without an issue would have been error under the common law. Stephens on Pleadings and Shipman’s Common Law Pleadings.

Erom the circuit court of Adams county. Hon. Jepp Truly, Judge. ■ Mrs. Murdin, appellant, was charged, tried and convicted for carrying a deadly weapon concealed, and appealed to the supreme court. The opinion sufficiently states the facts. Erom the five witnesses introduced by appellant to prove the threats made against her it appears strongly, firmly, clearly that if there ever can be a case in which a person is justified in carrying concealed weapons it was in this case.

From the circuit court of Pontotoc county. Hon. Eugene O. Syk-es, Judge. Fooshee, appellant, was indicted, tried and convicted for the seduction of Zora McGreger, under Code 1892, § 1298, and appealed to the supreme court. The opinion states the case. The court below should have granted a continuance. The indictment was filed on the 11th of December, and the trial began on the morning of the 12th.

From the circuit court of Lauderdale county. Hon. Guión Q. Hall, Judge. Blau, appellant, was indicted, tried and convicted, under Code 1892, §§ 1120, 1121, for dealing in futures, and appealed to the supreme court. The facts upon which the case was decided are fully stated in the opinion.

From the chancery court of Sharkey county. Hon. William P. S. Ventress, Chancellor. Casey, appellee, was complainant, and Morrison, appellant, was defendant in the court below. From a decree overruling a demurrer to complainant’s bill defendant appealed to the supreme court.

From tbe chancery court of Harrison county. Hon. Stone Devours, Chancellor. Rossel and others, appellees, were complainants, and Levy, appellant, and others, were def endants in the court below. For the report of a motion in the case see Levy v. Bossel, ante, 68. In May, 1900, appellant, Levy, and one Antoine Belande entered into an agreement to carry on a dram shop in Biloxi.

From tbe chancery court of Tazoo county. Hon. Henry C. Conn, Chancellor. Butts, appellant, was complainant, and Mrs. Ricks, appellee, was defendant, in the court below.

From the chancery court of, first district, Hinds county. Hon. Henry C. Conn, Chancellor. Norfleet, appellant, was complainant, and Beall, appellee, a colored physician, was defendant in the court below. From a decree dismissing the bill the complainant appealed to the supreme court. The facts are stated in the opinion of the court. It may be added, however, that the land was shown to have been worth, one thousand dollars.

From the chancery court of Tunica county. Hon. A. McO. Kimbrough, Chancellor. Anderson and others, appellants, were complainants in the court below; McNeal and others, appellees, were defendants there. The suit was an attachment in chancery by complainant Anderson and others, against McNeal, a nonresident of this state and others, all the defendants being residents of Tennessee. The writ was levied upon lands.

Prom the circuit court of, first district, Chickasaw county. ' Hon. Eugene O. Sykes, Judge. Pulpus, appellant, was indicted, tried and convicted óf murder, and appealed to the supreme court. The opinion of the court states the facts of the case. This case was the killing of a human being by another unaided or abetted by any one, but the state attempted to prove a conspiracy on the part of all the defendants and others to kill and murder the deceased.

From the circuit court of Claiborne, county. . . Hon. George Anderson, Judge. Lane, alias Sykes, was indicted, tried and convicted of bigamy, and appealed to the supreme court. The facts, upon which the case was' decided, are stated in the opinion of the court. The first essential element of bigamy is a valid marriage, entered into by the defendant prior to the alleged bigamous marriage. An indictment for bigamy cannot be sustained where the prior marriage was void.

Erom tbe circuit court of Tunica county. Hon. Samuel O. Cook, Judge. Tbe state, on tbe relation of Earl Brewer, district attorney, wa!s tbe plaintiff in tbe court below. Richard E. Abbay, chairman, and other members of tbe Democratic Executive Committee of Tunica county, were defendants there.

From the circuit court of, first district, Hinds county. Hon. Robert Powell, Judge. Pounder and others, appellants, partners doing business under the name “J. M. & O. B. Pounder,” were plaintiffs in the court below; the railway company, appellant, was defendant there. Prom a judgment in plaintiff’s favor, the defendant appealed to the supreme court. The opinion of the court states the facts of the case.

From the chancery court of Washington county. Hon. Cary C. Moody, Chancellor. Levenworth, appellant, was complainant, and the Greenville Wharf & Storage Co., appellee, was defendant, in the court below. The object of the suit was to cancel appellee’s claim to lots 9 and 10, block 18, of the Huntington & Le Valley addition to the city of Greenville, as a cloud upon complainant’s title and to confirm his tax title thereto.

Prom the circuit court of, first district, Hinds county. Hon. Robert Powell, Judge. Mrs. Carver, appellee, was plaintiff, and the city of Jackson, appellant, defendant, in tke court below. Prom a judgment in plaintiff’s favor defendant appealed to tbe supreme court. Tbe facts are sufficiently stated in tbe opinion of tbe court. Tbe declaration alleges that tbe crossing “appeared to be safe,” and tbe evidence for tbe plaintiff is tbat it appeared to be safo.

[From the circuit court of Leake county. Hon. Samuel H. Kirkland, Special Judge. Work and others, appellants, partners, doing business under the name of “Work Bros. & Co.,” were plaintiffs, and Wag-goner and another, appellees, were defendants in the court below. In December, 1890,, appellants -sued Out an attachment against Gwin, and Waggoner and a Mrs. Joiner, appellees, were summoned as garnishees.

From the chancery court of Madison county. Hon. Robert B. Mayes, Chancellor. Ray, appellant, was complainant, and Kelly, appellee, was defendant in the court below. From a decree in defendant’s favor, the complainant appealed to the supreme court. The facts are fully stated in the opinion of the court.

From the circuit court of Noxubee county. Hon. Guión Q. Hall, Judge. The Merchants & Farmers Bank, appellant, was plaintiff, and Mrs. Calmes, appellee, was defendant, in the court below. The suit was upon a written contract of guaranty in these words: “Brooksville, Miss., December 6, 1898. We hereby guaranty the account of Calmes & St. John Co., with the Merchants & Farmers Bank of Macon, Miss., to the amount of $2,500.

From the chancery court of Washington county. Hon. Caret O. Moody, Chancellor. Dora Brown and another, appellees, were complainants in the court below; Anna C. Hardison who, defended by her guardian, Roxanna Kenoye, was defendant there. In May, 1886, William Brown died intestate, leaving his wife, Mary Brown, and their two children, Dora and Willie Brown, as his only heirs.

From the circuit court of, first district, Hinds county. Hon. Robert Powell, Judge. Bussey and others, appellees, were plaintiffs in the court below; the railroad company, appellant, was defendant there. From a judgment in plaintiff’s favor defendant appealed to the supreme court. The case was once before in the supreme court and is reported, Bussey v. Gulf & Ship Island Railroad Go., 79 Miss., 597.

From tbe circuit court of Yazoo county. Hon. Robert Powell, Judge. Fulcber, appellant, was indicted and tried for tbe murder of one McNeal; be was convicted of- manslaughter and appealed to tbe supreme court. 'Tbe evidence for tbe state was substantially as follows: Appellant and deceased were neighbors, their fields lying adjacent, and separated by a wire fence.

Erom .the circuit court of Sunflower county. Hon. A. MoO. Kimbrough, Judge. Edward W. Cooper and Carl H. Rock, appellants, partners under name of Cooper & Rock, were plaintiffs, and the railroad company, appellee, was defendant, in the court below. The facts were these: Appellants, railroad contractors, entered into a contract with the appellee to clear and grub the right of way of a projected extention of the railroad track.

Erom the chancery court of Sunflower county. Hon. Carey O. Moody,' Chancellor. Hannah, appellee, was complainant, and Mortimer and others, appellants, were defendants in the court below. Erom a decree overruling defendants’ demurrer to complainant’s bill, the defendants appealed to the supreme court. The facts are stated in the opinion of the court.

<p>Trespass. Damages. Sum demanded. Instruction not to exceed.</p> <p>It is not erroneous in an action of trespass for damages for the court to instruct the jury at plaintiff’s request that they cannot award greater damages than the sum demanded in the declaration.</p>

Erom the circuit court of Yazoo county. Hon. Robert Powell, Judge. Smith, appellee and cross-appellant, was plaintiff in the court below; the railroad company, appellant and cross-appellee, was defendant there. From a judgment for $250 in plaintiff’s favor the defendant appealed to the supreme court, and the plaintiff prosecuted a cross-appeal. A statement of the facts is unnecessary to an understanding of the opinion.

From the circuit court of Washington county. Hon. A. MoC. Kimbrough, Chancellor. Williams, appellant, was plaintiff in the court below; the railroad company, appellee, was defendant there. The suit was for damages in the sum of $1,362.90 for cotton burned by the defendant.

From the circuit court of Newton county. Hon. John R Enochs, Judge. Thames, appellant, was indicted, tried, and convicted of an assault and battery with intent to kill and murder one Solomon Gardner, and appealed to the supreme court. The facts may be inferred from the opinion of the court and the instruction quoted therein.

From the circuit court of Lauderdale county. Hon. Guión Q. Hall, Judge. This was an action of replevin for a boiler and originated in the court of a justice of the peace, the appellee, Williams, being plaintiff, and the appellants, Winner and others, doing business under the name of “Winner & Meyer,” defendants.

From tbe circuit court of Washington county. Hon. A. MoC. Kimbrough, .Judge.

From the chancery court of Lauderdale county. ITon. Nathan C. Hill, Chancellor. Sheehan and others, appellants, were contestants, and Mrs. Kearney and others appellees, were proponents in the court below. The suit was a contest of the last will and testament of one Cornelius Sheehan, deceased. The court below peremptorily instructed the jury in favor of proponents, and from a decree based on a verdict so given the contestants appealed to the supreme court.

From the circuit court of Olay county. Hon. William F. Stevens, Judge. Mrs. Blanks, appellant, was plaintiff in the court below; the railway company, appellee, was defendant there. In truth,, however, the suit was defended (for reasons apparent from the opinion of the court) by the brothers and sisters of Daniel Blanks.

Prom the circuit court of Leake county. Hon. John B. Enochs, Judge.

From the circuit court of Lauderdale county. Hon. Guión Q. Hall, Judge. George, appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. The action was replevin for certain freights consigned to appellee and upon which the railroad company contended certain demurrage charges had accrued, and which plaintiff had declined to pay.

Prom tbe circuit court of Warren county. Hon. George Anderson, Judge. Wells, appellee, was plaintiff, and tbe telegraph company, appellant, was defendant in tbe court below. Prom a judgment in plaintiff’s favor, tbe defendant appealed to tbe supreme court. Tbe facts are fully stated in tbe opinion of tbe court. Wells bad no- contract with tbe telegraph company.

Erom the circuit court of Noxubee county. Hon Q-uion Q. Hall, Judge. Elkin apd another, appellants, were plaintiffs in the court below; Rives, appellee, was defendant there. Erom a judgment in defendant’s favor, plaintiff’s appealed to the supreme court. In 1900, appellants borrowed $1,000 from one Cooper, and, to secure same, gave a deed of trust on some property. They also gave their note payable in one year from date.

Erom the circuit court of Bolivar’county. Hon. A. McC. Kimbrough, Judge. Ball and another, appellants, were plaintiffs, and Sledge, appellee was defendant in the court below. The case was begun in a justice’s court. Erom a judgment in defendant’s favor the plaintiffs appealed to the supreme court. The state of the record, on which the case turned, is shown by the opinion of the court.

Erom tbe circuit court of Bolivar county. Hon. A. McC. Kimbrough, Judge. Ball and others, appellants, doing business under the name of Ball, Brown & Co., were plaintiffs in the court below; Sledge, appellee, was defendant there. Sledge, appellee, rented lands in this state from one Williamson for the year 1900.

From tbe circuit court of Lauderdale county. Hon. Guión Q. Hall, Judge. The Meridian Land and Industrial Company, appellant, was plaintiff in the court below; James B. Ormond, one of the appellees was original defendant there,' and his mother, Mrs. Eliza J. Ormond, the other appellee, was claimant. From a judgment in favor of appellees the plaintiff appealed to the supreme court.

Hon. Stone Devours, Chancellor. John Brandon, administrator of the estate of William Brandon, deceased, appellee, was complainant or petitioner in the court below; Winner and others, appellants, doing business under the name of Winner & Meyer, were defendants there, h'rom a decree adverse to them, defendants appealed to the supreme court.

From the circuit court of Warren county. Hon. George Anderson, Judge. The Aetna Insurance Company, appellee, in one of the cases, was plaintiff therein in the court below; Schlenker, appellee in the other case, was the plaintiff therein in said court. The railway company, appellant in both cases, was defendant in them both in that court. From a judgment in each case in favor of the plaintiff therein, the defendant appealed to the supreme court.

From the circuit court of Yazoo county. Hon. Robert Powell, Judge. • Anderson, appellant, was indicted, tried and convicted of rape, and appealed to the supreme court. The facts, as stated by the prosecutrix, were in substance as follows: “I was going along about twelve o’clock. I was afraid.

Erom the chancery court of Newton county. Hon. Thomas Keith, Special Chancellor. Armistead and others, appellants, were complainants in the court below; Barber and others, appellees, were defendants there. The proceeding was by a bill of review.

Erom the circuit court of Claiborne county. Hon. George Anderson, Judge. Edward and Richard Smith, appellants, were indicted, tried and convicted of robbery, and appealed to the supreme court. The facts touching the contents of the indictment, upon which the case was alone decided, are stated in the opinion of the court.